“Judicial activism” is the charge that judges make rulings based on personal or ideological reasons rather than existing law.

Opponents of this “activism” often point to various Supreme Court cases that they believe marked the beginning of this trend, a belief often tied with a desire for the judiciary to return to times before judicial activism became prominent.

Some point to 1954’s Brown v. Board of Education – the ruling that ordered the desegregation of schools nationwide – as the turning point.

By far the most popular ruling to attack as the “opening of the floodgates” for judges to “make the law” in the U.S. is 1973’s Roe v. Wade – the decision that struck down abortion restrictions.

Actually, though, neither of these cases marks the beginning of judicial activism (nor, for that matter, any other case typically cited by “activism” opponents).

Rather, the decision that started it all was 1803’s Marbury v. Madison, decided 209 years ago today.

Marbury is responsible for the notion of “judicial review” – that “it is emphatically the province and duty of the Judicial Department to say what the law is.”

Stated otherwise, Marbury gave courts the power to strike down laws, treaties, or regulations if they are in conflict with superseding laws, such as the U.S. Constitution.

The facts giving rise to the case are somewhat complex, but I’ll give the quick and dirty version.

President John Adams was defeated by Thomas Jefferson in the 1800 election, but before Jefferson took office, Adams tried to stack the courts with his political allies.

The process wasn’t completely finished by the time Jefferson took office, and Jefferson promptly halted the whole thing, stopping several of the appointees from assuming their judicial post.

William Marbury

One such appointee, William Marbury, requested a writ of mandamus from the Supreme Court ordering Jefferson’s Secretary of State James Madison to deliver the remaining appointments so that Marbury could assume office.

The Supreme Court said that, although Madison must fulfill his purely ministerial duty to deliver the appointments, the Court had no power to issue a writ of mandamus.

Why?

Because the power to issue writs of mandamus given to the Court by Congress in the Judiciary Act of 1789 was an unconstitutional expansion of the Supreme Court’s original jurisdiction found in Article III, Section 2 of the U.S. Constitution.

Of course, this by itself wouldn’t really qualify as “judicial activism.”

What would qualify, however, is the fact that the Court rested this conclusion on the principle that the judiciary has the power and duty to reconcile conflicting laws and to “expound and interpret” why the superseding law prevails.

In other words, the judiciary not only has the power to determine what laws are unconstitutional, it has the power to determine why a law is unconstitutional.

Since the majority of such disputes do not implicate conflicts in the plain wording of laws, this power necessarily involves some level of interpretation by a judge.

Since judges are human, they inevitably base this interpretation on their own experiences, beliefs, and emotions – elements that comprise an individual’s worldview – especially when there is very little existing law to guide them.

Is this “judicial activism?”

Perhaps, but it is how the judiciary has operated for over 200 years.

Given that the Marbury decision was itself controversial at the time it was handed down, it shouldn’t surprise anyone that the same exercise of judicial review by the courts today continues to spark resentment.

Such individuals who label as “judicial activism” the exercise of judicial review in cases with which they disagree with the outcome are free to do so as a right guaranteed by the U.S. Constitution.

However, the power to make the final determination of what is “constitutional” rests squarely in the hands of the Supreme Court, and has since Marbury was decided on February 24, 1803.

Consequently, although those making the charges of “judicial activism” may believe that a Supreme Court ruling is in complete conflict with the law, in truth, that same ruling is the law.

At least, until different Justices with different worldviews take the bench and say differently.

About the Author

Blog Writer, Thomson Reuters

Jeremy Byellin is an attorney practicing in the areas of family law and estate planning. He lives in the Minneapolis area with his wife, who is also an attorney, and his two sons and daughter. In his spare time, he enjoys running and being outdoors.
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